Simon Power needs Act's support to pass the Criminal Procedure (Reform and Modernisation) Bill. Will he tell Act to stuff Heather Roy's Voluntary Student Union Bill where the sun doesn't shine, unless they hold their noses, and support grossly illiberal legislation which does away with the right to silence?

When Chris Kahui was acquitted of murdering his twin sons in 2008, law commissioner Sir Geoffrey Palmer mused that perhaps it was about time we did away with the right to silence for those accused of criminal offences.

He was quoted in the New Zealand Herald: "It is not a change that would happen quickly, but talking about it is not [typo edited] wrong."

Justice Minister Simon Power did more than talk about it. In late 2010 he introduced to Parliament omnibus legislation (which does have some notable qualities, such as making it much harder for celebrities to obtain name suppression) the Criminal Procedure (Reform and Modernisation) Bill.

Supporters (Sensible Sentencing et al) viewed the legislation as justifiable; they'd been outraged when the Kahui whanau had refused to cooperate with police investigating the deaths of babies Chris and Cru. The Government's solution was to increase the powers of the police - always a dangerous move, since the police will never tell governments to cease, and say, "We have enough powers, already."

But now the Minister is struggling to pass the Bill in its present form. He must secure the support of the Act Party, or the Bill will not pass before the election, and before he retires. Power has championed the need to end the right to silence. When this goes, with it goes its cousin, the right to be presumed innocent until proven guilty. Power says the changes will speed up the justice system and reduce costs, but his own department did not come up with significant research to back up this, stating it would be, "difficult to identify robust estimates of the savings in preparation and trial time that could be made."

The sticking point for Act is that the Bill introduces pre-trial rules which erode the right to silence for the accused by providing, in Clause 64, that the defence must notify all issues in dispute. In other words the accused must provide police, the prosecution, with all the details of their defence before going to court. Presently they don't have to do this because the burden of proof lies with the prosecution. If the Bill passes, our entire criminal justice system will be turned on its head.

Furthermore, Clause 106 provides that if the defence fails to comply satisfactorily with the above clause, in other words, if the accused doesn't 'put all their cards on the table' so to speak, then an inference of guilt, or something to hide, can be taken. The right to silence no longer means just that, it can be taken to mean something dodgy.

The right to silence is not some quaint notion. The prosecution's evidence must be truly tested. The police, for instance, should not know what's coming when they're questioned in court, so their answers are spontaneous and honest. We know the police can lie. We only need look at some recent cases to see the evidence of late.

In the United States, the right not to incriminate oneself is a constitutional issue, entrenched in the 5th Amendment, an interesting fact in light of the National/Maori Government appointing last week a Constitutional Advisory Panel. Can we protect individual rights in this country? Clearly our Bill of Rights Act is not enough, as Government has already signalled it will be amended if this Bill is passed. It already states individuals have the right to refrain from making any statement when arrested, and to be informed of that right. But that can be overturned by simple Parliamentary process.

But now the Minister of Justice wants his Bill to pass, and there are fears he will do a deal with Act which will go something like this: National will pick up Heather Roy's Voluntary Student Union Membership Bill - originally a Members Bill, and the only way this will now pass thanks to Labour's pathetic filibustering - only so long as Act votes in favour of the Criminal Procedure Bill. This will mean Act will have to vote away the right to silence.

What will Act do? Whose freedoms are more important? The freedoms of students to choose to join a union as opposed to being forced to join a union? Or the freedom of the accused to be innocent until proven guilty and retain the right to remain silent, a hard-won freedom we should never, never trade away?

The Greens have consistently voted against the Criminal Procedure Bill, and for that we should, no matter what our political persuasion, salute them.

But Heather Roy's Bill, if passed, will be the first Members Bill ever passed by the Act Party, a considerable achievement for that Party. Roy should also be saluted, but will the nest of vipers which Act has become take the opposite path, and rob outgoing Roy of this final victory?

That decision rests in the hands of Justice spokesperson Hilary Calvert.

Comments (24)

National will pick up Heather Roy's Voluntary Student Union Membership Bill - originally a Members Bill, and the only way this will now pass thanks to Labour's pathetic filibustering - only so long as Act votes in favour of the Criminal Procedure Bill.

I'm not sure this claim about the VSM Bill's status is correct - ACT and National broke the filibuster last members' day, and there are 3 more days left to finish the Committee stage and Third Reading. Labour may yet find a way to slow things down again, but the likelihood is that it will pass in that time.

On the "right to silence" aspect ... trying to sell this change on the back of the Kahui case is duplicitous. The problem there was that you had a bunch of folks who refused to tell the police everything they knew about the events. This legislation says that defendants must identify issues in dispute before trial. So the "solution" isn't actually connected to the "problem". And anyway, Sian Elias has made it clear that the change probably won't work:

In part my objection to the sanctions provisions has a similar basis but I should also record that the view of the judiciary is that the sanctions are likely to prove to be impracticable to apply in practice because of uncertainty about whether the abuse of the system is the fault of the defendant or of counsel. Judges will of course be inhibited in their inquiries by the existence of privilege for communications between counsel and client. All-in-all, then, the sanctions provisions are likely, except in comparatively rare cases, to be ineffective.

the Bill introduces pre-trial rules which erode the right to silence for the accused by providing, in Clause 64, that the defence must notify all issues in dispute. In other words the accused must provide police, the prosecution, with all the details of their defence before going to court.

No.

It introduces pre-trial rules that would require the defence to notify the issues in dispute.

He was quoted in the New Zealand Herald: "It is not a change that would happen quickly, but talking about it is now wrong."

Fascinating to see Coddington, government appointee to the Constitutional Advisory Panel and progenitor of the Sensible Sentencing Trust with her rights-sensitve little dog-whistle booklet, the Sex Offender Index, now defending the right to silence? Some folks' utter, craven hypocrisy knows no bounds.

You're going to have to be more specific about how Deborah is a hypocrite (much less an "utter, craven" one). How is publishing a list of convicted offenders sourced from the public record inconsistent with saying that the criminal justice system should contain defendant rights to ensure people are not wrongfully convicted? What "right" is infringed by having your criminal actions publicised, equivalent to having to tell the State how you propose to defend yourself against the charges that the State is trying to convict you of?

Also, what is your basis for calling Deborah a "progenitor of the Sensible Sentencing Trust"? She's been pretty scathing of what she calls "Laura 'Norder" politics on this site previously ... and check out this Herald column:

This is just that mad lot from Sensible Sentencing, who have the gall to try to call themselves a charity, having their hysterical influence on the National Government and its support party Act.

It introduces pre-trial rules that would require the defence to notify the issues in dispute.

Well, that is much the same isn't it? This problem arises a lot in the summary jurisdiction when judges often ask the defence what matters are in dispute. If the defence accepts that identity, time and place are not in issue -- which are nevertheless elements of the offence -- and then the police fail to produce evidence on those points, the defence cannot then rely on that failure as reasonable doubt because they've already accepted that they are not in dispute.

Some lawyers refuse to say what matters are in dispute, some don't. Some judges don't ask, some do. But it makes a huge difference if the police prosecutor fails to properly put forward its case, which is the burden he/she bears.

So this law change stinks the big one and it will be interesting, if enacted, to see if lawyers feel that it squares with their ethical obligations under 13.13 of the Rules of Conduct and Client Care.

Andrew: I'm not blaming Sir Geoffrey for the Bill. I don't think this is what he envisaged. Nonetheless, the refusal to cooperate with the investigation by police by the Kahuis is one of justifications used by lobby groups like Senseless Sentencing.

Claire: Thanks for picking up that typo. He did indeed say talking about it is 'not' wrong. As Tim Watkin will confirm, I had enormous problems posting this piece - it kept disappearing on me.

Clause 64 (1) The defendant must, in accordance with subsection (2) or (3) - (a) give notice of individual elements of the offence that the defendant disputes; and (b) give notice of any defence, justification, exception, exemption, proviso, or excuse on which the defendant intends to rely.

Tom: The Senseless Sentencing Trust would be mortified by your description. They would like to drive a stake through my heart. But don't hold back, tell me what you really think. Perhaps you think those men and women who have committed crimes of a sexual nature against men, women, and children and do not have name suppression, plus have had their names published previously (that was crucial in the compilation of my database) should not have their names published again? Do tell.

Ah Deborah, there you go again. Unlike some, I recall how you milked that dog-whistle little publication for all it was worth and built a albeit short-lived political career off it. You could give the tea party lessons. So please don't try the same tired old tricks here, the old 'if you disagree with me, you must be one of them' ruse.

[Ed: This is meandering close to the line of personal invective, which we don't do here - crossing that line results in a comment disappearing into the memory hole.]

I'm not sure I like the angle of this article. Comparing voluntary student membership to the right to silence is clearly rubbish, VSM is only a freedom in that it gives representative student organisations the freedom to starve. Students don't support it, why should this so called 'freedom' be forced upon them? The right to silence on the other hand is completely different, it is disengenious to compare the two.

Tom your invective clouds your ability to argue coherently. I successfully argued against the NSW DPP who tried to ban my publishing the Australian Sex Offender Index, and in the UK, the House of Commons tried to ban my publishing same there. So don't try and reduce my efforts to some sort of 'dog whistle' political effort. I wasn't even considering a formal political career when I published these books - there were three of them, in case you've lost count. Furthermore, I won a defamation case taken against me. So make sure you know your argument, before you take me on in this particular subject, please. Also, if my political career is so "short-lived" how come I have just been appointed until 2013 to the Constitutional Advisory Panel? I hardly put my hand up for it. Seems like it's causing you considerable liver problems, though.

Alexb - 'freedom to starve' because students don't have to join a union? You'll have to explain that one. Since when did student unions prevent students from starving to death?

Deborah, please. Your appointment to the Constitutional Advisory Panel came out of the blue and had nothing to do with political connections or favours? Yeah, right. I have always found it amusing to watch political extremists and dog-whistlers chase respectability and reinvention through selective amnesia.

Dog-whistle politics, also known as the use of code words, is a term for a type of political campaigning or speechmaking which employs coded language that appears to mean one thing to the general population but has a different or more specific meaning for a targeted subgroup of the audience.

Tom, you sound like a young child who overheard an impressive-sounding word being used, and decided to reuse it again and again without knowing what it means.

Socieity and politics being what it is; and everything is a gradual process; if we abolish the right to silence - what is next.

America-style "extra-ordinary interrogation"?

As I write this, I'm listening to retired CIA officer,Glenn Carle being interviewed on National Radio. He is explaining "extra-ordinary interrogation" - torture - in secret prisons throughout the world.

It would be unfortunate if, yet again, Parliament changed laws in knee-jerk reaction to one case (the Kahui case). I'm also surprised thatr a man of Sir Geoffrey Palmer "mused that perhaps it was about time we did away with the right to silence for those accused of criminal offences". Surely he must have the imagination and wit to u nderstand where this road will lead us?

@ Falcon, thanks for confirming my view that publishing her little booklets had less to do with public enlightenment and more to do with public profile. And just like the personal slur from she whom you seek to defend, yours does not phase me or shut me up either. Pity some people refuse to comply when slapped down by their betters, isn't it. The great levelling effect of the blogishphere strikes again.

Deborah. I was speaking metaphorically, but now that you mention it, yes, student unions do sometimes help people avoid starving to death by giving them hardship assistance.

The problem I have with this article is the interpretation of freedom, you take it to mean essentially individualistic. I completely disagree. Freedom comes from security, and securtiy can only be gaurenteed by a collective, apologies if that sounds communist but it is true. Individuals are powerless in the face of larger organisations, which is why students need collective security. If student unionism is made vountary, some will not join the union, but all the power of the collective will be taken away, leaving every student in an every man for themselves type situation.

The cult of individualism has utterly failed, and this has been shown by people much more eloquent than myself (see Tim Watkin for example) Why you would force individualism on students is completely beyond me, unless you want to raise a generation ready and willing to make the same mistakes that the current generation in power has.

The most ironic thing I heard some days ago was ex-ACT MP, Stephen Franks, on National Radio's Jim Mora's "Afternoon" segment, lamenting the lack of sense of community in Britain, leading to an environment where the riots could take place.

Oh really, Mr Franks? But - "community" does not exist in a free market - only the Individual.

We reap what we sow, and the primacy of the Individual over Community has resulted in some fairly awful events. Where a Community is subservient to the rights of the Individual, all manner of anti-social activities can occur; public drunkeness and dis-order; child abuse; vandalism; leading up to serious public disturbances.

I think the public are only just starting to wake up to this stark reality.

Thanks Alex, and I do take your point that individual freedom ain't the be all and end all and that collective freedom also matters. Having said that, I don't think Deborah's being unreasonable making the comparison, not least because that's exactly what ACT MPs will be considering as they wrestle with their principles.

Although, having said that, I don't buy ACT's premise. They say the VSM is a freedom issue. But we give away individual freedoms all the time - we pay taxes, we drive on one side of the road rather than the other, we don't carry guns on planes and we accept passports that define us as NZers. We don't get to choose any of those things. We're forced to be members of the tax-paying association and the NZer association, so what's the big deal about being forced to be part of a student association?

Let's be honest, it's a bunch in the party trying to get the ultimate revenge over the trendy lefties who made their life a misery at university.

Oh, and equaling those scores isn't worth losing the right to silence - and presumed innocence, as Deborah says. It sounds fin when you use the Kahui experience, where someone in that family was certainly guilty.

But what about when there's doubt or indeed the people involved are innocent. Actually, I'm curious... acn anyone paint me a picture of what may happen in that situation? If the police suspect you of something you didn't do and you didn't have the right to silence, how might this be used against you?

There's the defendant's right not to have to say anything at all about the charges they face, beyond arguing that the prosecution just hasn't proven its case. And in arguing the case isn't proven, the defendant doesn't have to tell the prosecution in advance what bits of the the prosecution's evidence the defendant may challenge. It is this aspect that the present legislation would change - it would require the defendant to tell the prosecution "these are the bits of your case I'll be saying are weak" ... which then allows the prosecution to go about trying to bolster those bits. Which is what civil libertarians are worried about - effectively a defendant has to help the State construct the strongest possible case against them.

Beyond this, there's everyone's right to say nothing to the Police about anything at all (beyond providing them with your name and address), without that silence saying anything at all about your guilt or innocence of any particular offence. This is really the aspect at issue in the Kahui case - the "tight 12" or whatever they were just wouldn't say what they knew. That will still be the general position in NZ even if this Bill proceeds, but note it is already subject to some exemptions:

(1) The serious fraud office has the power to compel those suspected of committing serious fraud to provide information/answer questions about the suspected crimes, in that refusing to answer carries a criminal penalty

(2) Under the proposed Search and Surveillance Bill, this power would be extended to persons suspected of involvement in serious organised crime.

Alternatively, there is the UK position, which says you don't have to answer the police's questions about anything ... but if you don't answer when asked, the courts may draw an inference from your refusal. In other words, a judge/jury can assume that your silence is because you have something to hide (rather than that you just couldn't be bothered dealing with the cops).

Student unions, I'm afraid, are not remotely representative of the student body - instead providing a platform for cliques of aspiring journalists and larval politicians who want publicity. If Heather Roy's bill passes, they will lose probably 95% of their membership - or - they will actually begin to pay attention to their ostensible function. Might be a good thing.

I don't buy ACT's premise. They say the VSM is a freedom issue. But we give away individual freedoms all the time - we pay taxes, we drive on one side of the road rather than the other, we don't carry guns on planes and we accept passports that define us as NZers. We don't get to choose any of those things. We're forced to be members of the tax-paying association and the NZer association, so what's the big deal about being forced to be part of a student association?

Are you serious, Tim? You'd think if you're making a career out of writing about politics, you would make the effort to learn about the different ideologies at play. But here you've made a simple, simple error.

It's called the "harm principle". People give up the freedom to punch strangers in the face because exercising that freedom would harm someone else. Likewise driving on the wrong side of the road... students associations don't prevent harm, if anything they needlessly harm students' wallets by $190 per year.

Disagree with VSM all you want, but there's no need to try to say there's any ideological inconsistency behind the bill. It's about as ACT-like as a bill can be.

"It's called the "harm principle". People give up the freedom to punch strangers in the face because exercising that freedom would harm someone else. Likewise driving on the wrong side of the road... students associations don't prevent harm, if anything they needlessly harm students' wallets by $190 per year."

Falcon, we also pay taxes, rates (plus tax ON rates!!) - is the government "harming" our wallets? (Yes, yes, I know your answer.) Yet, the same Libertarianz who screech that "taxation is theft" happily drive on the roads (taxpayer funded); walk on the footpaths (ditto); went to schools (ditto); go to public hospital A&E Wards (ditto); etc.

By the way, I don't 'buy' the argument one iota that Student Unions are forcing students to pay fees. If 51% of Student Unions were opposed to compulsory membership, they could easily call a meeting; pass a motion (the committee variety); and make their association voluntary.

That's called democracy. Funny how neo-libs love to use democracy and freedom of choice - when it suits them?

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